OFFICIAL SHORT CITATION NAME: When referring
to 2007 OEA 16, cite this case as

IDEM v. Scherb Dairy
II, 2007 OEA 16.

TOPICS:

Dismiss

motion to reconsider

modification of final order

jurisdiction

motion to correct error

Indiana Rules of Trial Procedure

Rule 53.4

Ind. Code § 4-21.5-3-31

rehearing

PRESIDING JUDGE:

Gibbs

PARTY REPRESENTATIVES:

Complainant, IDEM: Nancy Holloran

Respondent: Peter M. Racher,
Esq., Todd J. Janzen, Esq.,

Plews, Shadley,
Racher & Braun

ORDER ISSUED:

January 24, 2007

INDEX CATEGORY:

Water

FURTHER CASE ACTIVITY:

[none]

[2007 OEA 16, page 17 begins]

STATE OF INDIANA ) BEFORE
THE INDIANA OFFICE OF

) ENVIRONMENTAL
ADJUDICATION

COUNTY OF MARION )

IN THE MATTER OF: )

)

COMMISSIONER, INDIANA DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT )

)

Complainant )

)

v. ) CAUSE
No. 05-S-E-3561

)

RONNIE SCHERB d/b/a SCHERB DAIRY )

)

Respondent )

FINDINGS OF
FACT, CONCLUSIONS

OF LAW AND
FINAL ORDER

This constitutes notice of a Final Order. This matter
having come before the Court on the Indiana Department of Environmental
Management’s Motion to Reconsider; Ronnie Scherb’s Motion to Reconsider and
Response to IDEM’s Motion to Reconsider; and the Environmental Law Judge, being
duly advised and having considered the pleadings and evidence presented at the
hearing, makes the following findings of fact, conclusions of law and Order:

Findings of
Fact

1.On May 15, 2003, the Indiana Department of Environmental Management (the
“IDEM”) issued a Notice of Violation (NOV) to Ronnie Scherb d/b/a Scherb Dairy
(the “Respondent”) for violations of 327 IAC. The parties were unable to reach
a settlement agreement.

2.On June 1, 2005, the IDEM issued a Notice and Order of the Commissioner
of the Department of Environmental Management (the “CO”) to the Respondent.

3.On June 20, 2005, the Respondent, by his counsel, Mark Shere, filed his
Petition for Review in this matter.

4.A prehearing conference was held on July 6, 2005, at which both parties
were present by counsel. A case management order was issued, including, but
not limited, to a date for completing discovery. This deadline was subsequently
extended to January 23, 2006.

5.On December 7, 2005, the IDEM filed its Notice of Filing of Discovery
Request.

6.On January 19, 2006, counsel for Respondent filed his Notice of
Withdrawal of Counsel and Scherb’s Motion for Extension. On January 26, 2006,
this Environmental Law Judge (the “ELJ”) granted counsel’s request to withdraw
and granted the Respondent an extension until February 7, 2006 to answer IDEM’s
discovery requests.

[2007 OEA 16, page 18 begins]

7.The Respondent did not answer the discovery requests.

8.On February 22, 2006, IDEM filed its Motion for Proposed Order of
Dismissal and Suspension of Dispositive Motion Deadline. On February 24, 2006,
this ELJ granted the motion for extension of time to file dispositive motions
and ordered the Respondent to answer the IDEM’s discovery requests within ten
(10) business days of the receipt of the order. The IDEM’s Requests for
Admission were deemed admitted.

9.The Respondent failed to respond to the discovery requests.

10.On March
15, 2006, IDEM filed its Renewed Motion for Proposed Order of Dismissal.

11.On March
17, 2006, this ELJ issued its Notice of Proposed Order of Default to the
Respondent allowing him seven (7) days from service of the Notice to respond or
be held in default. The Respondent failed to respond.

12.On March 31,
2006, the Notice of Proposed Order of Default was re-issued by certified mail,
return receipt requested. The Respondent received the notice on April 3,
2006.

13.On April
19, 2006, counsel for the IDEM filed its Request for Entry of Order of
Dismissal or, in the Alternative, Motion for Suspension of Dispositive Motion
Deadline.

14.On April
19, 2006, this ELJ issued its Order of Default and for Status Conference (April
19, 2006 Order). The Respondent was held in default and found to be in
violation of the regulations specified in the CO. The amount of penalty and
corrective actions were unresolved.

15.On April
26, 2006, the IDEM filed its Motion to Reconsider the April 19, 2006 Order of
Default and for Status Conference.

16.A status
conference was held on May 5, 2006 with the Respondent present and counsel for
IDEM participating by telephone. The remaining issues were set for hearing on
June 14, 2006.

17.On May 22,
2006, the IDEM filed another Motion to Reconsider.

[2007 OEA 16, page
19 begins]

18.On June 14,
2006, a hearing was held. The IDEM presented evidence regarding the amount of
the penalty and the corrective actions that the Respondent needed to
undertake. The Respondent was present and offered testimony regarding the
appropriate penalties and corrective actions.

19.On July 19,
2006, the ELJ issued Findings of Fact, Conclusions of Law and Final Order (a
copy of which is attached and incorporated herein and hereinafter referred to
as the “Final Order”). The Respondent was ordered to pay a civil penalty of
$7,500 (seven thousand, five hundred dollars) and to take corrective action.

20.The IDEM
filed a Motion to Reconsider on August 7, 2006. On August 9, 2006, the ELJ
ordered the Respondent to file his response, if any, on or before August 28,
2006.

21.Respondent
filed an Unopposed Motion for Enlargement of Time to Respond to Motion to
Reconsider was filed with the OEA on November 22, 2006. In this motion, IDEM’s
counsel agreed to extend the time for the Respondent to file his response to
the Motion to Reconsider until September 27, 2006.

22.On
September 27, 2006, the Respondent filed Ronnie Scherb’s Motion to Reconsider
and Response to IDEM’s Motion to Reconsider and Ronnie Scherb’s Motion to
Withdraw Admissions and Request for a New Hearing.

23.A status
conference was held on October 11, 2006. The ELJ set a deadline of November
13, 2006 for filing briefs on the issue of whether the ELJ continued to have
jurisdiction of this matter.

24.The
Respondent filed a Brief in Support of Jurisdiction on November 13, 2006.

25.No petition
for judicial review pursuant to Ind. Code § 4-21.5-5
has been filed.[1]
No other agency or court has assumed jurisdiction of the Final Order.

26.The OEA is
the ultimate authority for decisions of the Commissioner of the IDEM.

Conclusions of
Law

1.The Office of Environmental Adjudication (“OEA”) has jurisdiction and is
the ultimate authority over the decisions of the Commissioner of the IDEM and
the parties to the controversy pursuant to Ind. Code
§4-21.5-7-3 and 4-21.5-7-5.

2.Findings of fact that may be construed as conclusions of law and
conclusions of law that may be construed as findings of fact are so deemed.

[2007 OEA 16, page 20 begins]

3.The issue in this matter is whether this ELJ has the authority to modify
the final order in this cause. Proceedings in the Office of Environmental
Adjudication (the “OEA”) are governed by the Administrative Orders and
Procedures Act (AOPA), Ind. Code § 4-21.5-3
and by the procedural rules promulgated by OEA at 315 IAC 1.

4.Ind. Code § 4-21.5-3-31 provides that a
final order may be modified as follows:

(1) Thirty
(30) days after the agency has served the final order under section 27, 29, or
30 of this chapter.

(2) Another
agency assumes jurisdiction over the final order under section 30 of this
chapter.

(3)
A court assumes jurisdiction over the final order under
IC 4-21.5-5.

(b) A party
may petition the ultimate authority for an agency for a stay of effectiveness
of a final order. The ultimate authority or its designee may, before or after
the order becomes effective, stay the final order in whole or in part.

(c) A party
may petition the ultimate authority for an agency for a rehearing of a final
order. The ultimate authority or its designee may grant a petition for
rehearing only if the petitioning party demonstrates that:

(1)
the party is not in default under this chapter;

(2)
newly discovered material evidence exists; and

(3) the
evidence could not, by due diligence, have been discovered and produced at
the hearing in the proceeding.

The rehearing may be limited to the
issues directly affected by the newly discovered evidence. If the rehearing is
conducted by a person other than the ultimate authority, section 29 of this
chapter applies to review of the order resulting from the rehearing.

(d) Clerical
mistakes and other errors resulting from oversight or omission in a final order
or other part of the record of a proceeding may be corrected by an ultimate
authority or its designee on the motion of any party or on the motion of the
ultimate authority or its designee.

(e) An
action of a petitioning party or an agency under this section neither tolls the
period in which a party may object to a second agency under section 30 of this
chapter nor tolls the period in which a party may petition for judicial review
under IC 4-21.5-5. However, if a rehearing is granted under subsection
(c), these periods are tolled and a new period begins on the date that a new
final order is served.

5.The rules of statutory construction provide that statutory language must
be given its plain and ordinary meaning. “When construing the language of a
statute, the Court of Appeals is bound to apply the plain and ordinary meaning of words
and phrases.” Miller Brewing Co. v. Bartholomew County Beverage Cos., Inc.,
674 N.E.2d 193, 205 (Ind. Ct. App. 1996).

[2007 OEA 16, page 21 begins]

6.The statute expressly allows for the modification of a final order
within thirty (30) days if another agency or a court has not assumed
jurisdiction. In this case, as the OEA is the ultimate authority and no party
has petitioned for judicial review, the OEA has the authority to modify the
final order for thirty (30) days.

7.The IDEM filed a motion to reconsider within
thirty (30) days of the final order being issued. Ind. Code § 4-21.5-3-31
does not specify how motions to reconsider should be treated under AOPA.
However, under the Indiana trial rules, motions to reconsider are not proper
after a final judgment has been entered. Hubbard v. Hubbard, 690 N.E.2d
1219 (Ind. Ct. App. 1998). The Court in Citizen’s Industrial Group v.
Heartland Gas Pipeline, 856 N.E.2d 734 (Ind. Ct. App. 2006), ruled that a
motion to reconsider should be treated as a motion to correct error. In this
case, the Citizen’s Industrial Group (the “CIG”) had filed a motion to
reconsider a final order issued by the Indiana Utility Regulatory Commission
(the “IURC”). The parties briefed the issues raised in the Motion to
Reconsider, at which point, the IURC issued an order denying the motion. The
CIG filed an appeal of the order denying the motion to reconsider.[2]
The Court, in discussing the proper appellate procedure stated, “Therefore, in
an administrative proceeding, a motion to reconsider or a motion for rehearing filed
with the administrative agency serves the same function as a motion to correct
error filed with the trial court.”[3]
At 737.

8.Under Indiana Rule of Trial Procedure 53.4,[4]
a Motion to Correct Error shall be deemed denied if the Court does not rule on
it within forty-five (45) days. This time limitation does not apply if “the
parties who have appeared or their counsel stipulate or agree on the record the
time limitation . . . shall not apply.” T.R. 53.4(B). In this case, the
parties agreed that the Respondent could have until September 27, 2006 to file
a response to the Motion to Reconsider.

9.Because IDEM filed its Motion to Reconsider within the thirty (30) days
allowed for modification and because the parties agreed to extend the time
limitation for the filing of a response, this ELJ has jurisdiction to decide
the Motion to Reconsider and subsequent filings.

[2007 OEA 16, page
22 begins]

10.The Motion
to Reconsider should be treated as a motion to correct errors under the Indiana trial rules. As more than forty-five (45) days has passed since the Motions to
Reconsider were filed and no further extensions were agreed to or granted, this
ELJ could consider these motions to be automatically denied pursuant to the
trial rule.

11.While the
trial rule sets out the procedure for acting on motions to correct
errors, Ind. Code § 4-21.5-3-31 sets out the standards
for the modification of final orders. The applicable portion of Ind. Code § 4-21.5-3-31(c) allows the agency to
grant a rehearing only if:

(1) the party is not in
default under this chapter;

(2) newly discovered material
evidence exists; and

(3)
the evidence could not, by due diligence, have been discovered and
produced at the hearing in the proceeding.

12.These
standards have not been met because (1) the Respondent was found to be in
default and (2) neither party alleges that new evidence exists. Therefore, the
Motions to Reconsider should be denied.

Final Order

AND THE COURT, being duly advised, hereby ORDERS, ADJUDGES AND
DECREES that the IDEM’s Motion to Reconsider and the Respondent’s Motion to
Reconsider are DENIED. The Findings of Fact, Conclusions of Law and
Final Order issued by this Court on July 19, 2006 is affirmed.

IT IS SO
ORDERED THIS 24th day of January, 2007.

Hon. Catherine
Gibbs

Environmental
Law Judge

[2007 OEA 16: end of decision]

[1]
The OEA has not been served with a copy of a petition for judicial review nor
has it been requested to prepare a record.

[2]
More than thirty (30) days had passed since the underlying final order was
issued. The Court ultimately decided that the appeal was not timely filed
because the Appellate Rules expressly state that a motion to reconsider will
not toll the time period for initiating an appeal. However, the appellate
rules are not applicable in this matter as Scherb has not filed a petition for
judicial review of the final order issued in this matter.

[3]The applicable rule cited by the Court says “[f]ollowing a final order,
any party to a proceeding may file with the commission and serve upon all
parties of record a petition for rehearing and reconsideration within twenty
(20) days of the entry of the final order, unless an applicable statute shall
specifically fix a longer period." 170 IAC 1-1.1-22(3).

[4]Pursuant to 315 IAC 1-3-1(b)(18), the ELJ may apply the Indiana Rules of Trial
Procedure where not inconsistent with AOPA or Title 315.